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Judge's Decision Striking NSA Program Will Not Stand

Judge Leon’s Sleight of Hand

Judge Leon claims his conclusion that the NSA’s metadata collection violates the Fourth Amendment is supported by the Supreme Court’s 2012 decision in United States v. Jones. He could not be more wrong.

Jones involved the surveillance by GPS tracking device, without a valid warrant, of a vehicle’s movements for nearly a month. In holding that the surveillance in Jones violated the Constitution, the very first point Justice Antonin Scalia’s majority opinion makes is: “It is beyond dispute that a vehicle is an ‘effect’ as that term is used in the [Fourth] Amendment.” That is, Jones is a “constitutionally protected area” case. Contrary to the NSA metadata case before Judge Leon, Jones does not rely on judicial suppositions about “expectation of privacy” to implicate the Fourth Amendment.

Judge Leon attempts to sidestep this inconvenience by mining two of the concurring opinions in Jones (by Justices Sotomayor and Alito) as if they echoed the high court’s rationale. But of course, they do not – they are concurrences precisely because they do not reflect the opinion of the Court’s majority.

“Expectation of privacy” is a judicially legislated add-on to the original Fourth Amendment. It is rooted in the concurring opinion of Justice John Marshall Harlan in the 1967 case of Katz v. United States. (Unlike the just discussed concurrences in Jones, Justice Harlan’s Katz concurrence is authoritative because it was adopted by Supreme Court majorities in subsequent cases.)

My point here is not to quibble with “expectation of privacy.” Like many judge-made doctrines, “expectation of privacy” is a jurisprudential fact of life even if it does not reflect the Fourth Amendment as originally understood. My contention, instead, is: If you are going to hang your hat on a doctrine manufactured by the Supreme Court, you have to accept the limitations the Supreme Court has put on it. On the matter of metadata, the Supreme Court unambiguously ruled in Smith v. Maryland that there is no constitutionally cognizable expectation of privacy in phone number subscriber information, phone numbers dialed, and the duration of calls. A district judge may not like Smith v. Maryland, but he is obliged to follow it.

Judge Leon flouted this obligation. He endeavored to camouflage this brute fact with a couple of populist flourishes. Leon first contended that the “threshold question” he was called on to answer was:

[W]hether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets?

This would be a fine argument if Leon were a congressman seeking to amend the Patriot Act. As a legal argument, it is nonsense.

The Supreme Court has already held that there is no reasonable expectation of privacy in metadata. It is black letter Fourth Amendment law that a person may not enforce another person’s Fourth Amendment rights, so the fact that the government is collecting metadata for “hundreds of millions of other citizens” is irrelevant to the plaintiffs’ Fourth Amendment claim. The fact that the government acts “without any particularized suspicion of wrongdoing” and “without prior judicial approval” only matters if the thing it is searching or seizing is protected by the Fourth Amendment. Metadata is not – to repeat: (a) it is not within the four categories set forth in the amendment, and (b) the Supreme Court squarely held in Smith that there is no expectation of privacy in it. (As I’ve noted before, when I was a prosecutor, I did not need a particularized suspicion of wrongdoing or a judge’s permission to look up a number in the phone book – the information therein is not constitutionally protected.)